Winchester Cigarette Machinery Ltd v Payne and Another
| Jurisdiction | England & Wales |
| Judgment Date | 10 December 1993 |
| Date | 10 December 1993 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Rose and Lord Justice Hoffmann
Evidence - expert evidence - discretion to refuse leave
The court had an inherent jurisdiction to refuse an application by a litigant for leave to adduce expert evidence brought by summons under Order 38, rule 36 of the Rules of the Supreme Court.
Where prejudice to a party to the action would result because of the need to seek an adjournment of the trial so as to be able to deal with such evidence, it was right that the application be refused.
The Court of Appeal so held in dismissing an interlocutory appeal by the defendants, Michael and Gillian Payne, from an order by Mr Justice Otton on October 6, 1993, debarring them from calling experts to give evidence in the action brought against them by the plaintiffs, Winchester Cigarette Machinery Ltd, due to be heard over 15 days in two weeks time.
Order 38, rule 36 provides: "(1) Except with the leave of the court or where all parties agree, no expert evidence may be adduced at the trial … unless the party seeking to adduce the evidence (a) has applied to the court to determine whether a direction should be given under rule 37 or 41 … and has complied with any direction given on the application…"
Mr Sam Neaman for the defendants; Miss Catharine Otton-Goulder for the plaintiffs.
LORD JUSTICE HOFFMANN said that the appeal raised a curious point of construction on Order 38, rule 36(1)(a).
It was one of the rules made under powers conferred on the Rule Committee by the Civil Evidence Act 1972 for pre- trial disclosure.
The defendants' summons pursuant to rule 36 was issued in September, three weeks before the trial date. It sought leave to adduce evidence from two experts.
Mr Neaman argued that the judge had no jurisdiction to refuse it. The rule, it was said, bound the judge to make an order in his favour at any time up to the commencement of the trial.
To accede to that argument would defeat the principal object of the rule: to avoid taking parties by surprise and the consequent necessity for adjournments.
There was no doubt that the proper time for consideration of questions of the need for expert evidence was at the hearing of the summons for directions.
Where a party made his application at the last minute so that there were no longer any directions that could practicably be given and which could enable justice to be done, it was open to the...
To continue reading
Request your trial
- Slough Estates Plc and Others v Welwyn Hatfield District Council and another
-
Pfizer Ltd v Medimpex Jamaica Ltd, NMF Pharmaceuticals Ltd and Lasco Distributors Ltd
...common sense and the balance of advantage but the starting point will be the first principle stated above. (See Winchester Cigarette Machinery Ltd. v. Payne and Anor. (No 2) TLR 15 th January 1993.) 21 In the matter of injunctions, Mr. Henriques submitted that a stay of execution will be gr......
-
Scotiabank Jamaica Trust and Merchant Bank Ltd v National Commercial Bank Jamaica Ltd and Another
...to the fruits of his judgment and there must be a good reason for depriving a claimant of his judgment (see Winchester Cigarette Machinery Ltd v Payne and Another (No 2) Times Law Reports, 15 December 1993). Therefore any applicant who seeks to obtain a stay of execution pending appeal has ......
-
Singh Rahul, Commonwealth Communications LLC and Ocean Petroleum Inc. v Kingston Telecom Ltd and Cable & Wireless JA Ltd
...the fruits of his labour and ought not to be deprived thereof unless there is some good reason for doing so. See Winchester Cigarette Machinery Ltd v Payne and Another (No) 2 (1993) T.L.R. 647. 21 An appellant, therefore, in seeking a stay of execution, must satisfy the court not only that ......